IN THE CASE OF:	

		BOARD DATE:	  2 March 2010

		DOCKET NUMBER:  AR20090017470 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of the reason for his separation from an honorable discharge under the trainee discharge program (TDP) to a medical discharge.

2.  The applicant states that the facts of his case were covered up in 1980 because the Army needed to see a kid getting into a weapons of mass destruction/mutual assured destruction project.  Those facts may even be classified "Top Secret" today.  Nevertheless, his records should be corrected.  He believes that he was not legally discharged and therefore the Army remains responsible for his medical condition.  His medical condition has gotten worse within the prison system due to the absence of a qualified doctor to treat his "Cold War syndrome."  He has about 5 more years in the State prison system and since he was not legally discharged, it would be appropriate for the Department of Defense and the TRICARE system to take custody of him.   In order to do so, his illegal discharge should be placed on "stay."  He is now in limbo and has even attempted suicide on two occasions.  He needs proper care promptly.

3.  The applicant also states that during boot camp, he attempted suicide by using chemicals and subsequently saw several mental health doctors for post traumatic stress disorder and other classified issues.  However, neither the Army nor the Department of Veterans Affairs (VA) took care of his medical problems and as such he was put in limbo and his life was destroyed.  His discharge was undisputedly illegal and the TDP is void.  By law, he cannot have a TDP and should have a medical discharge.

4.  The applicant provides a copy of a letter, dated 8 October 2009, from the National Personnel Records Center in support of his request.

5.  On 22 September 2009, the applicant submitted a letter in which he states his issues cannot be resolved by mail or telephone and that if this Board would send an agent to meet with him for a combined effort to resolve his issues, he would entertain the idea.  But the Board needs to act as soon as possible.

6.  On 25 October 2009, the applicant submitted another letter in which he requests someone from the Department of the Army to address his treatment issue within the Florida prison system.  He is now in a ward due to his "Cold War syndrome" and had violently attempted suicide due to a cover-up.  It has been 30 years since his discharge and it is time the Department of Defense declassified his file.

7.  On 25 October 2009, the applicant submitted another letter in which he requests the Board interpret all the codes on his armed services vocational aptitude battery (ASVAB) test and any other tests he took, some codes on his DA Form 2-1 (Personnel Qualification Record), his military occupational specialty (MOS), and security clearance.  He further requests clarification of the personnel reliability program (PRP).  He also requests an explanation of MOS 15E (Pershing Missile Crewmember) and requests a picture of the missile.  He further requests the VA to expedite his case.

8.  On 9 February 2010, the applicant submitted another letter wherein he stated that his case should be simple.  The TDP discharge is illegal.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army for a period of 3 years on 25 June 1980 and was subsequently reassigned to Fort Sill, OK, under the one-station unit training program for completion of basic combat training and advanced individual training for MOS 15E.

3.  On 11 July 1980, the applicant was counseled by his drill sergeant regarding his failure to follow instructions.  The counseling statement shows he displayed a negative attitude toward any authoritative figures, especially his drill sergeants, and that when corrected he would display an attitude of disrespect.

4.  On 1 August 1980, the applicant was counseled by his immediate commander for PRP disqualification due to drug abuse.  The counseling statement shows he had previously disclosed to his immediate commander that he had been heavily involved with drugs and that he was hospitalized for phencyclidine (PCP) abuse. 
He had also told his commander that he did not want to stay in the Army.  The counseling statement further shows the commander offered him assistance and asked him to focus on his training, but the applicant said he was having flashbacks from his prior drug abuse and was becoming nervous at times and could not concentrate on anything.

5.  On 10 August 1980, the applicant was counseled by his platoon sergeant for sniffing black boot die in a brown paper bag in the storage room of the barracks.  He was escorted to the hospital where the examining doctor recommended his referral to mental hygiene and that he be dropped from the PRP program.

6.  On 12 August 1980, the applicant underwent a mental status evaluation wherein he related a history of abusive drug usage prior to entering the Army and further related to an attempted suicide at Fort Myers, FL, during a drug-related incident.  He also stated that he could not cope with military service and wanted out of the Army.  The military physician diagnosed him as an individual with flat effect and poor insight and judgment.  The military physician also stated that there was no evidence of any primary psychiatric disorder; however, adequate emotional adjustment for continued military service was poor.  He was strongly recommended for elimination from the service in accordance with chapter 5 (TDP) of Army Regulation 635-200 (Personnel Separations).

7.  On 12 August 1980, the applicant was again counseled by his immediate commander regarding his incident of sniffing kiwi edge dressing.  The counseling statement shows that the applicant was confused at the time and stated that he was still a drug addict, was still having flashbacks and was unaware of what was happening around him, and that he had been previously hospitalized due to his drug addiction and attempted suicide.

8.  On 12 August 1980, the applicant's immediate commander advised the applicant that he intended to recommend his discharge from the Army under the provisions of paragraph 5-33 (TDP) of Army Regulation 635-200.  The specific reason for the recommendation was that the commander was convinced that the applicant was not mentally stable enough to remain in the Army.  His pre-service drug abuse had carried over into his military service and the counseling and guidance provided did not produce the desired result.  Continued effort to retain him in the military would have only resulted in causing harm to him or others.

9.  On 12 August 1980, the applicant acknowledged notification of his proposed discharge and was advised of the basis for the contemplated separation from the Army under the provisions of paragraph 5-33 of Army Regulation 635-200, the effect on future enlistment in the Army, and of the procedures and rights that were available to him.  He acknowledged that if he did not have sufficient prior service, he understood that due to non-completion of requisite active duty time, VA and other benefits normally associated with completion of honorable active service would be affected.  He further elected not to submit a statement on his own behalf and elected not to have a separation medical examination if his separation was approved.

10.  On 13 August 1980, the applicant's immediate commander recommended approval of the applicant's discharge and a waiver of additional counseling.

11.  On 15 August 1980, the applicant's intermediate commander interviewed the applicant and determined that his discharge was in the best interest of the Army. He also indicated that the applicant had been in the hospital for drug-related problems prior to entering the service and had shown the after effects of that drug use during his training.  He had also continued to use a drug while in the Army, was unable to concentrate on anything for any length of time, seemed confused at times, and had a lethargic attitude.  He could never be depended upon in any stressful situation and could not perform to the standards required in the Army.

12.  On 21 August 1980, the separation authority approved the applicant's discharge and directed that he receive an honorable discharge.  On 28 August 1980, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed 2 months and 4 days of creditable active military service.  Item 26 (Separation Code) of the applicant's DD Form 214 shows the entry "JET" and item 28 (Narrative Reason for Separations) shows the entry "Trainee Discharge Program (TDP) Marginal or Non-productive."

13.  There is no indication in the available medical records that the applicant was treated for an injury or an illness that would have warranted his entry into the Physical Disability Evaluation System (PDES).  Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEBD) or a physical evaluation board (PEB).

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 5-33 of this regulation, in effect at the time, governed the TDP.  This program provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or have failed to respond to formal counseling.  The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual, on-the-job, or service school training prior to award of an MOS and must not have completed of more than 179 days of active duty on the current enlistment by the date of separation.  The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self- discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. 
The regulation in effect at the time established SPD code "JET" as the appropriate code to assign Soldiers who were separated under the provisions of paragraph 5-33f(2), Army Regulation 635-200, and established the narrative reason for separation for these members as "TDP Marginal or Non-productive."

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for MEBDs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the reason for his separation should be changed to medical.

2.  There is no evidence in the applicant's records and the applicant did not provide any evidence that shows he sustained an injury and/or suffered from an illness that would have warranted his entry into the PDES.  Further, the applicant declined to take a separation medical examination and there is no evidence to suggest he suffered from a medical condition that would have disqualified him for retention or separation.

3.  The evidence of record further confirms the applicant had a drug abuse problem that existed prior to his service and had shown the after-effects of that drug use during his training.  He underwent a mental evaluation and was determined to have poor insight and judgment and poor emotional adjustment for continued military service.  Accordingly, his chain of command initiated separation action against him.  His separation processing was accomplished in accordance with the applicable regulations in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  In accordance with the regulation in effect at the time, the narrative reason for separation for members separated under the provisions of paragraph 5-33 of Army Regulation 635-200 was " TDP Marginal or Non-productive," as is recorded in item 28 of his DD Form 214.  Thus, there appears to be no error or injustice related to this entry. 

5.  With respect to the applicant's VA issues, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact that agency regarding entitlement to any benefits and/or any issues.

6.  With respect to the interpretation of all the codes of his ASVAB and other tests scores, DA Form 2-1, MOS, security clearance, and the PRP, the applicant is reminded that the ABCMR is not an investigative body; it corrects records.  If the applicant believes any of these codes is in error or unjust, he is advised to submit a request, specifically state what correction he desires, and provide supporting evidence.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to the requested relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________X____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090017470



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ABCMR Record of Proceedings (cont)                                         AR20090017470



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